© 2006 Newsday http://www.newsday.com/news/opinion/ny-vpnsa064576414jan06,0,5218675.story?coll=ny-editorials-headlines

Published: January 6, 2006

There will always be a need to eavesdrop on domestic communications to preserve the security of this country. But with its domestic spying program, the Bush administration needlessly rejected a law mandating judicial oversight of surveillance operations in compliance with the Fourth Amendment's ban against unreasonable searches and seizure - and in so doing dealt a blow to the crucial system of checks and balances at the heart of our democracy.

In 2002, Bush expanded the role of the clandestine National Security Agency by giving the spy outfit permission to eavesdrop without a warrant on telephone calls and e-mails between suspected terrorists in foreign lands and people inside the United States. His order permitted the NSA to circumvent the court established by the Foreign Intelligence Surveillance Act, which authorizes wiretaps and warrants in covert investigations when probable cause is shown.

For almost 30 years, the FISA court has worked. And when international terrorism became the main priority after Sept. 11, these federal judges - all handpicked by the late Chief Justice William Rehnquist - approved more than 5,000 applications and rejected only a handful.

This week, President George W. Bush strongly defended his use of unauthorized wiretaps, saying they were "limited." He needs to play defense after the latest media disclosures revealed that even top officials in his own Justice Department were troubled that the White House may be overstepping its bounds. The disclosures also raise the question of whether the president misled the public in a 2004 campaign appearance in which he said, "When we're talking about chasing down terrorists we're talking about getting a court order to do so."

Perhaps Bush can't articulate a justification because he has no sound legal reason, just a theoretical claim that the president has unlimited authority - the same flawed underpinnings of his much-criticized torture policy. The U.S. Supreme Court rejected this thinking in a 2004 decision dismissing the administration's claim that the courts had no power to review the detentions of enemy combatants. In an opinion by Justice Sandra Day O'Connor, the court said all three branches of government have a role in protecting individual liberties. "A state of war is not a blank check for the president when it comes to the rights of the Nation's citizens," she wrote.

Early next week, the administration is due to explain its actions to some very upset FISA judges. The Senate will hold hearings later this month. The Constitution was violated and federal law broken, and someone in the White House must be held accountable.